701: Technology in the Workplace

1. 701: Technology in the Workplace Legal and Ethical Ramifications

2. Bring on the Fun • One in every nine people on Earth is on Facebook • People spend 700 billion minutes per month on Facebook • Each Facebook user spends on average 15 hours and 33 minutes a month on the site • 30 billion pieces of content is shared on Facebook each month • YouTube has 490 million unique users who visit every month (as of February 2011) • YouTube generates 92 billion page views per month

3. Bring on Even More Fun • Users on YouTube spend a total of 2.9 billion hours per month (326,294 years) • Wikipedia hosts 17 million articles • People upload 3,000 images to Flickr every minute • Flickr hosts over 5 billion images • Twitter is handling 1.6 billion queries per day • Twitter is adding nearly 500,000 users a day • Google+ has more than 25 million users • Google+ was the fastest social network to reach 10 million users at 16 days

4. The Bottom Line Is… • People communicate via technology, and expect their friends, colleagues, service providers, etc., to do so as well. • Whereas before there was no record of communication, now there is. • These communications, whether appropriate or not, send messages both intentional and unintentional that have serious impact on our personal and business lives.

5. Learning Objectives • Identify benefits and challenges of using technology in the workplace; • Assess an organization for boundary/ethical issues of using social networking inside and outside of the workplace by considering the nature of relationships; • Discuss the impact of technology on a witness’ credibility in court; and • Identify methods to develop and implement policy around technology in the workplace.

6. Agenda • Welcome and Introductions • Technology and Defining Relationships • Technology and Constituent Service • Technology’s Impact on the Courts • Creating a Technology Policy • Summary and Evaluation

7. What Does Technology Add to Our Workplace?

8. What Challenges Does Workplace Technology Create?

9. It’s All About Relationships • employer – employee relationship • co-employee relationship • agency and investigatory relationships • caseworker – biological parent relationship • caseworker – resource parent relationship • court – caseworker relationship (or even court – parent/court – attorney, etc.)

10. Employer-Employee Relationship • Pre-employment social media screening increasing in use, but fraught with potential pitfalls. • Regular monitoring of current employee social media probably a full-time job, and similarly fraught with pitfalls.

11. The National Labor Relations Board’s (NLRB) Take On Social Media Policies • Section 7 rights apply to every employment relationship, not just where a workplace is unionized – every employee has these rights.

12. What Are Section 7 Rights? • Basically, the National Labor Relations Act holds that employees have the right to engage in concerted activities for the purpose of “collective bargaining or other mutual aid or protection” in the areas of safeguarding themselves from injury, impairment or interruption, and “encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions.” 29 U.S.C. § § 151, 157. • To effectuate this right, the NLRB has held that employers are not permitted to place restrictions on employees’ ability to discuss these areas of concern.

13. The NLRB Social Media Cases • A collections agency employee was improperly terminated under an unlawful employer policy prohibiting employees from “disparaging” the employer in any medium after updating her Facebook page to complain (using expletives) about being reassigned to a less desirable position within the company. Her message reached several co-workers with whom she was “friends”, starting a discussion about pay, policies, etc.

14. The NLRB and Social Media Cases (continued) • A home improvement store was properly fired for posting a expletive and the name of the employer’s store on her Facebook page after being reprimanded by a supervisor. She later also posted that the employer did not appreciate its employees. Although she had four co-workers among her “friends”, none of them engaged in any conversation with the employee indicating that her concern was a group concern upon which they desired to take action. Thus, the conduct was not “concerted activity”, and the discharge was not in violation of Section 7.

15. The NLRB and Social Media Cases (continued) • However, the NLRB did find that the policy, which prohibited employees from identifying themselves as employees of the employer in social networking situations unless “discussing terms or conditions of employment in an appropriate manner” was too broad, because it did not define or give examples of either “appropriate” or “inappropriate” discussions, and employees might read that to prohibit conduct permissible under Section 7.

16. The NLRB Social Media Cases (continued) • Employer policy which prohibited the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic did not violate Section 7 of the Act.

17. The NLRB Social Media Cases (continued) • Employer policy which requested that employees limit their social networking to matters unrelated to the company to the extent necessary to comply with securities regulations and other laws, and prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, did not violate Section 7.

18. The Co-Worker Relationship • Sexual harassment • Other forms of discrimination • Cyber-bullying • While bullying unrelated to protected classification isn’t technically illegal at this point, it can have serious effects on the workplace.

19. The Agency and Investigatory Relationships • If you’re performing investigations using social media, just remember that you can’t pretend to be someone else in order to gain access to a private Facebook account – that’s fraud, and a violation of the Facebook use policies. • Remember under the Rules of Professional Conduct for attorneys, we can’t contact a represented individual about the matter for which they are represented – and neither should you or your agents – including any private investigators. Make sure everyone knows they can access what’s public, but don’t try to access the private sites.

20. The Agency and Investigatory Relationships (continued) • However, if “friendship” is volunteered to private sites, or if the information comes to you voluntarily through someone who is legitimately a “friend”, you can take action. • Consider using a “buffer” where the investigations are employment-related.

21. Being “Friends” With Our Constituents • Friend [frend]  noun 1. a person attached to another by feelings of affection or personal regard. 2. a person who gives assistance; patron; supporter: friends of the Boston Symphony. 3. a person who is on good terms with another; a person who is not hostile: Who goes there? Friend or foe? 4. a member of the same nation, party, etc. 5. ( initial capital letter ) a member of the Religious Society of Friends; a Quaker. 6. a person associated with another as a contact on a social-networking Web site: We've never met, but we're Facebook friends. http://dictionary.reference.com/browse/friend

22. Facebook and Our Constituents • Looking back at the benefits we discussed earlier, what are some of the ways that you can see that the use of technology would benefit your relationship with the birth parent? • What about with resource parents? • Do we use Facebook for more than just those purposes? What’s the reason we use Facebook?

23. The Caseworker-Birth Parent Relationship • But, considering the definition of “friend”, would that be an appropriate relationship to have, whether for “real” or “cyber-real”? • What kind of relationship are we supposed to have with birth parents as agency employees? If we “friend” a birth parent, how does that skew the work we have to do?

24. The Caseworker-Resource Parent Relationship • Are our conversations on Facebook, for instance, limited to discussions we would normally have with a resource parent? • How many of you talk with resource parents about your night out at the bar? But put that on Facebook? Discuss your relationship with your significant other? But post that on Facebook? • However, if we add them as Facebook friends, are we saying they are actual friends? Don’t they become actual friends by virtue of the access they have to our personal information?

25. How Do My Posts and Tweets Make Me Look in Court? • Evaluation of your credibility is essential to a caseworkers’ ability to perform their functions in the child welfare system – if the Court doesn’t believe that you’re exploring all options for a child, working cooperatively with the natural parents, investigating the safety of a foster home, they won’t trust the opinions or testimony of the caseworker or the agency. And that mistrust won’t be limited to a single case.

26. The Agency-Court Relationship • At this point, I’m not aware of any reported cases in Pennsylvania where these kinds of issues have come up – but they will. • In the meantime, social media has impacted court cases in a number of other ways, so let’s discuss how social media is changing the court landscape in other ways.

27. United States v. Fumo

28. United States v. Drummond

29. Quagliarello v. Dewees

30. Brown v. Montgomery County

31. Breslin v. Dickinson Township.

32. Reflective Thinking Questions • Are there policies that already exist that inform staff’s/resource parents’ online behavior? • If so, what areas are not addressed in current policies regarding the use of technology? • What else do Ineed to know about staff’s/resource parents’ use of social networking or texting? Who might have the information? • Is there a need to develop new policies? Would the development of guidelines be more appropriate? • What do Ineed to consider when creating new policy/guidelines around the use of social networking and texting in the workplace?

33. Things to Consider in Creating Technology Policies • Be clear about what is and is not prohibited - especially with regard to our legal obligations from a confidentiality standpoint. • Limitations on comments that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic • Be clear about the fact that the policy is not intended to apply to concerted activity under Section 7 – and monitor the NLRB’s future decisions.

34. Resource Parent Policies • Given the conflicts and limitations of direct “friending” of resource parents, is there another way to receive the benefits of use of social media that eliminates the potential problems? • Should we be considering applying our policies about non-fraternization, or at least the reporting of outside relationships, to “friend” status, so that as an agency we can at least have some oversight of the potential conflicts with an eye toward avoidance? • Make sure resource parents are clear about their role as it relates to the foster children – while we want to encourage bonding for the benefit of the children, they still “belong” to someone else, and the natural parent may not appreciate your “tweets” about their child. • The same legal limitations on confidentiality, etc., should be included in a resource parent policy as in the employee policy.

35. Understanding Why • Explain the need for the policy – sometimes, a little understanding on the part of employees and constituents can go a long way toward curbing the “negative” implications of technology and social media use.

36. Off Duty Tweets • We have some limitations on our ability to restrict speech outside of the workplace because of the First Amendment – but perhaps the best suggestion here is to remind our folks that social media sites have the option of making a profile “private”, and they should take advantage of those options.

37. When to Friend and When Not to Friend • A complete prohibition on friending constituents, etc., probably isn’t workable – and is probably nearly impossible to monitor

38. On Duty Tweets • Limitations on use of employer resources – computers, phones, email, etc. – ok if limited to restricting access to social media sites in the same way access to other sites (shopping, etc.) are restricted. • Limitations on use of resources might not be ok if you don’t limit use of same for other personal purposes. • Restrictions on ability to access these sites during working day from personal resources, if done during breaks, probably problematic.

39. Final Thoughts?